On
February 8, 2017, the Court held a hearing to determine the
proper construction of the disputed claim terms in United
States Patent Nos. 9, 026, 668 (“the '668
Patent”) and 9, 386, 356 (“the '356
Patent”) (collectively “the Asserted Patents).
The Court has considered the arguments made by the parties at
the hearing and in their claim construction briefs. Docket
Nos. 99, 104, & 109.[1] The Court has also considered the
intrinsic evidence and made subsidiary factual findings about
the extrinsic evidence. See Phillips v. AWH Corp.,
415 F.3d 1303, 1314 (Fed. Cir. 2005); Teva Pharm. USA,
Inc. v. Sandoz, Inc., 135 S.Ct. 831, 841 (2015). The
Court issues this Claim Construction Memorandum and Order in
light of these considerations.

TABLE
OF CONTENTS

MEMORANDUM
OPINION AND ORDER
.................................................................................
1

6.
“the processor is configured to match a targeted data
with a primary data based on a relevancy factor associated
with a user”
........................................... 55

7.
“instructions stored in the memory and executed using
the processor configured to”
................................. 58

8.
“the sandboxed application is configured to gather the
primary data from the networked device through the
communication session” / “the embedded object is
configured to gather the primary data from the networked
device through the communication session”
......................................................................................
64

The
'668 Patent was filed on May 28, 2013, issued on May 5,
2015, and is titled "Real-Time and Retargeted
Advertising on Multiple Screens of a User Watching
Television." The '356 Patent was filed on December
29, 2015, issued on July 5, 2016, and is titled
"Targeting with Television Audience Data Across Multiple
Screens." The Asserted Patents share a common
specification. The Asserted Patents generally relate to
"[a] method, apparatus, and system related to relevancy
improvement through targeting of information based on data
gathered from a networked device associated with a security
sandbox of a client device." '668 at 2:15-18.

The
specification describes Figure 1 as "a block diagram
depicting a system of automatic bidirectional communication
(e.g., sending and receiving information in both directions
without prior configuration by a human) between multiple
devices, according to one embodiment." '668 Patent
at 5:54-57.

(Image
Omitted)

Id. at Figure 1. Figure 1 includes "a client
device 100, a networked device 102, a security sandbox 104,
an executable environment 106, a processor 108, a memory 110,
a sandboxed application 112, a sandbox-reachable service 114,
a communication session 116, a cross-site scripting technique
118, an appended header 120, a same origin policy exception
122, and an other mode 124." Id. at 5:58-65.
The specification states that "the client device 100 may
automatically establish the communication session 116 between
the sandboxed application 112 and the sandbox-reachable
service 114 of the networked device 102." Id.
at 6:6-9.

The
specification further specifies that "[t]he
communication session 116 may be established between the
sandboxed application 112 and the sandbox-reachable service
114 through the cross-site scripting technique 118, the
appended header 120, the same origin policy exception 122,
and/or the other mode 124 of bypassing a number of (e.g., at
least one) access controls of the security sandbox 104."
Id. at 6:9-16. The specification adds that
"networked device 102 may generate a primary data 500
and/or a preliminary data 702, " and that "[t]he
primary data 500 and/or the preliminary data 702 may be
associated with a user 902." Id. at 6:28-32.

The
specification describes Figure 2 as illustrating "a
system of bidirectional communication between a
relevancy-matching server 200, the client device 100, and the
networked device 102, according to one embodiment."
Id. at 11:45-47.

(Image
Omitted)

Id. at Figure 2. The specification states that
"the relevancy-matching server 200 may be a computer
hardware system dedicated to matching, using a processor and
a memory, a targeted data 800 with the primary data 500 based
on a relevancy factor associated with the user 902.”
Id. at 11:56-60. The specification further states
that “[t]he relevancy-matching server 200 may match the
targeted data 800 with the primary data 500 by searching the
storage 200 for a matching item and/or a related item based
on the relevancy factor.” Id. at 12:17-20.

For
example, “[t]he client device 100 may communicate the
primary data 500 to the relevancy-matching server 200 through
the embedded object 204.” Id. at 13:9-11.
“When the relevancy-matching server 200 has the primary
data 500, the relevancy-matching server 200 may use the
primary data 500 to select the targeted data 800 to render to
the user 902.” Id. at 13:11- 14. The
specification adds that “[t]he relevancy-matching
server 200 may synchronize the targeted data 800 on the
client device 100 to the primary data 500 on the networked
device 102.” Id. at 13:14-17.

Claim 1
of the '668 Patent is an exemplary claim and recites the
following elements

(disputed
term in italics):

a
networked device configured to:

automatically announce a sandbox-reachable service of
thenetworked device to a discovery module; and

a relevancy-matching server configured to match a
targeted datawith a primary data based on a
relevancy factor associatedwith the user; and

a client device configured to:

automatically process an identification data of at least
one of thenetworked device and the
sandbox-reachable service of thenetworked device
from the discovery module,

automatically associate with the networked device through
asandboxed application of the client device
communicativelycoupled to the sandbox-reachable
service based on theidentification data,

process an embedded object from the relevancy-matching
serverthrough the sandboxed application,

gather the primary data through at least one of the
embeddedobject and the sandboxed application,
and

communicate the primary data to the relevancy-matching
serverthrough the embedded object;

wherein the client device is further configured to:
constrain an executable environment in a security
sandbox,

execute the sandboxed application in the executable
environment, and

automatically establish a communication session between
the sandboxed application and the sandbox-reachable service
through at least one of a cross-site scripting technique, an
appended header, a same origin policy exception, and an other
mode of bypassing a number of access controls of the security
sandbox, and

wherein the relevancy-matching server is configured to
match the targeted data with the primary data in a manner
such that the relevancy-matching server is configured to
search a storage for at least one of a matching item and a
related item based on the relevancy factor comprising at
least one of a category of the primary data, a behavioral
history of the user, a category of the sandboxed application,
and an other information associated with the user.

Claim 1
of the '356 Patent is an exemplary claim and recites the
following elements (disputed term in italics):

1. A system comprising:

a television to generate a fingerprint data;

a relevancy-matching server to:

match primary data generated from the fingerprint data
withtargeted data, based on a relevancy
factor, and search a storage for the targeted
data;

wherein the primary data is any one of a content
identification data and a content identification history;

a mobile device capable of being associated with the
television to:

process an embedded object, constrain an executable
environment in a security sandbox, and execute a sandboxed
application in the executable environment; and a content
identification server to:

process the fingerprint data from the television, and
communicate the primary data from the fingerprint data to
anyof a number of devices with an access to an
identificationdata of at least one of the
television and an automaticcontent identification
service of the television.

II.
APPLICABLE LAW

A.
Claim Construction

“It
is a ‘bedrock principle' of patent law that
‘the claims of a patent define the invention to which
the patentee is entitled the right to exclude.' ”
Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed.
Cir. 2005) (en banc) (quoting Innova/Pure Water Inc. v.
Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1115
(Fed. Cir. 2004)). To determine the meaning of the claims,
courts start by considering the intrinsic evidence.
Id. at 1313; C.R. Bard, Inc. v. U.S. Surgical
Corp., 388 F.3d 858, 861 (Fed. Cir. 2004); Bell Atl.
Network Servs., Inc. v. Covad Commc'ns Group, Inc.,
262 F.3d 1258, 1267 (Fed. Cir. 2001). The intrinsic evidence
includes the claims themselves, the specification, and the
prosecution history. Phillips, 415 F.3d at 1314;
C.R. Bard, Inc., 388 F.3d at 861. The general rule
is that each claim term is construed according to its
ordinary and accustomed meaning as understood by one of
ordinary skill in the art at the time of the invention in the
context of the patent. Phillips, 415 F.3d at
1312-13; Alloc, Inc. v. Int'l Trade Comm'n,
342 F.3d 1361, 1368 (Fed. Cir. 2003); Azure Networks, LLC
v. CSR PLC, 771 F.3d 1336, 1347 (Fed. Cir. 2014)
(“There is a heavy presumption that claim terms carry
their accustomed meaning in the relevant community at the
relevant time.”) (vacated on other grounds).

“The
claim construction inquiry . . . begins and ends in all cases
with the actual words of the claim.” Renishaw PLC
v. Marposs Societa' per Azioni, 158 F.3d 1243, 1248
(Fed. Cir. 1998). “[I]n all aspects of claim
construction, ‘the name of the game is the claim.'
” Apple Inc. v. Motorola, Inc., 757 F.3d 1286,
1298 (Fed. Cir. 2014) (quoting In re Hiniker Co.,
150 F.3d 1362, 1369 (Fed. Cir. 1998)). First, a term's
context in the asserted claim can be instructive.
Phillips, 415 F.3d at 1314. Other asserted or
unasserted claims can also aid in determining the claim's
meaning, because claim terms are typically used consistently
throughout the patent. Id. Differences among the
claim terms can also assist in understanding a term's
meaning. Id. For example, when a dependent claim
adds a limitation to an independent claim, it is presumed
that the independent claim does not include the limitation.
Id. at 1314-15.

The
prosecution history is another tool to supply the proper
context for claim construction because, like the
specification, the prosecution history provides evidence of
how the U.S. Patent and Trademark Office (“PTO”)
and the inventor understood the patent. Phillips,
415 F.3d at 1317. However, “because the prosecution
history represents an ongoing negotiation between the PTO and
the applicant, rather than the final product of that
negotiation, it often lacks the clarity of the specification
and thus is less useful for claim construction
purposes.” Id. at 1318; see also
AthleticAlternatives, Inc. v. Prince Mfg., 73
F.3d 1573, 1580 (Fed. Cir. 1996) (ambiguous prosecution
history may be “unhelpful as an interpretive
resource”).

Although
extrinsic evidence can also be useful, it is
“‘less significant than the intrinsic record in
determining the legally operative meaning of claim
language.'” Phillips, 415 F.3d at 1317
(quoting C.R. Bard, Inc., 388 F.3d at 862).
Technical dictionaries and treatises may help a court
understand the underlying technology and the manner in which
one skilled in the art might use claim terms, but technical
dictionaries and treatises may provide definitions that are
too broad or may not be indicative of how the term is used in
the patent. Id. at 1318. Similarly, expert testimony
may aid a court in understanding the underlying technology
and determining the particular meaning of a term in the
pertinent field, but an expert's conclusory, unsupported
assertions as to a term's definition are entirely
unhelpful to a court. Id. Generally, extrinsic
evidence is “less reliable than the patent and its
prosecution history in determining how to read claim
terms.” Id. The Supreme Court recently
explained the role of extrinsic evidence in claim
construction:

In some cases, however, the district court will need to look
beyond the patent's intrinsic evidence and to consult
extrinsic evidence in order to understand, for example, the
background science or the meaning of a term in the relevant
art during the relevant time period. See, e.g., Seymour
v. Osborne, 11 Wall. 516, 546 (1871) (a patent may be
“so interspersed with technical terms and terms of art
that the testimony of scientific witnesses is indispensable
to a correct understanding of its meaning”). In cases
where those subsidiary facts are in dispute, courts will need
to make subsidiary factual findings about that extrinsic
evidence. These are the “evidentiary
underpinnings” of claim construction that we discussed
in Markman, and this subsidiary factfinding must be
reviewed for clear error on appeal.

But
§ 112, ¶ 6 does not apply to all functional claim
language. There is a rebuttable presumption that § 112,
¶ 6 applies when the claim language includes
“means” or “step for” terms, and that
it does not apply in the absence of those terms. Masco
Corp., 303 F.3d at 1326; Williamson, 792 F.3d
at 1348. The presumption stands or falls according to whether
one of ordinary skill in the art would understand the claim
with the functional language, in the context of the entire
specification, to denote sufficiently definite structure or
acts for performing the function. See Media Rights
Techs., Inc. v. Capital One Fin. Corp., 800 F.3d 1366,
1372 (Fed. Cir. 2015) (§ 112, ¶ 6 does not apply
when “the claim language, read in light of the
specification, recites sufficiently definite structure”
(quotation marks omitted) (citing Williamson, 792
F.3d at 1349; Robert Bosch, LLC v. Snap-On Inc., 769
F.3d 1094, 1099 (Fed. Cir. 2014))); Williamson, 792
F.3d at 1349 (§ 112, ¶ 6 does not apply when
“the words of the claim are understood by persons of
ordinary skill in the art to have sufficiently definite
meaning as the name for structure”); Masco
Corp., 303 F.3d at 1326 (§ 112, ¶ 6 does not
apply when the claim includes an “act”
corresponding to “how the function is
performed”); Personalized Media Communications,
L.L.C. v. International Trade Commission, 161 F.3d 696,
704 (Fed. Cir. 1998) (§ 112, ¶ 6 does not apply
when the claim includes “sufficient structure,
material, or acts within the claim itself to perform entirely
the recited function . . . even if the claim uses the term
‘means.' ” (quotation marks and citation
omitted)).

When it
applies, § 112, ¶ 6 limits the scope of the
functional term “to only the structure, materials, or
acts described in the specification as corresponding to the
claimed function and equivalents thereof.”
Williamson, 792 F.3d at 1347. Construing a
means-plus-function limitation involves multiple steps.
“The first step . . . is a determination of the
function of the means-plus-function limitation.”
Medtronic, Inc. v. Advanced Cardiovascular Sys.,
Inc., 248 F.3d 1303, 1311 (Fed. Cir. 2001). “[T]he
next step is to determine the corresponding structure
disclosed in the specification and equivalents
thereof.” Id. A “structure disclosed in
the specification is ‘corresponding' structure only
if the specification or prosecution history clearly links or
associates that structure to the function recited in the
claim.” Id. The focus of the
“corresponding structure” inquiry is not merely
whether a structure is capable of performing the recited
function, but rather whether the corresponding structure is
“clearly linked or associated with the [recited]
function.” Id. The corresponding structure
“must include all structure that actually performs the
recited function.” Default Proof Credit Card Sys.
v. Home Depot U.S.A., Inc., 412 F.3d 1291, 1298 (Fed.
Cir. 2005). However, § 112 does not permit
“incorporation of structure from the written
description beyond that necessary to perform the claimed
function.” Micro Chem., Inc. v. Great Plains Chem.
Co., 194 F.3d 1250, 1258 (Fed. Cir. 1999).

For
§ 112, ¶ 6 limitations implemented by a programmed
general purpose computer or microprocessor, the corresponding
structure described in the patent specification must include
an algorithm for performing the function. WMS Gaming Inc.
v. Int'l Game Tech., 184 F.3d 1339, 1349 (Fed. Cir.
1999). The corresponding structure is not a general purpose
computer but rather the special purpose computer programmed
to perform the disclosed algorithm. Aristocrat Techs.
Austl. Pty Ltd. v. Int'l Game Tech., 521 F.3d 1328,
1333 (Fed. Cir. 2008).

III.
LEVEL OF ORDINARY SKILL IN THE ART

It is
well established that patents are interpreted from the
perspective of one of ordinary skill in the art. See
Phillips, 415 F.3d at 1313 (“[T]he ordinary and
customary meaning of a claim term is the meaning that the
term would have to a person of ordinary skill in the art in
question at the time of the invention, i.e., as of the
effective filing date of the patent application.”). The
Federal Circuit has advised that the “[f]actors that
may be considered in determining the level of skill in the
art include: (1) the educational level of the inventors; (2)
the type of problems encountered in the art; (3) prior art
solutions to those problems; (4) the rapidity with which
innovations are made; (5) sophistication of the technology;
and (6) education level of active workers in the
field.” Env'tl Designs, Ltd. v. Union Oil Co.
of California, 713 F.2d 693, 696 (Fed. Cir. 1983).
“These factors are not exhaustive but are merely a
guide to determining the level of ordinary skill in the
art.” Daiichi Sankyo Co. Ltd. v. Apotex, Inc.,
501 F.3d 1254, 1256 (Fed. Cir. 2007).

The
parties essentially agree that a person of ordinary skill in
the art would have at least a bachelor degree in computer
science, electrical engineering, or a related discipline and
2-3 years of experience. Plaintiff submitted a declaration of
Dr. Vijay Madisetti, in which he opines that “a POSITA
in this timeframe would have been someone with at least a
bachelor degree in computer science, electrical engineering,
or a related discipline and 2-3 years of experience.
Alternatively, a POSITA may have been someone with an
advanced degree in computer science, electrical engineering,
or a related discipline.” Docket No. 99-13 at 12 (Vijay
Madisetti Decl. at ¶ 33). Defendant submitted a
declaration of Dr. Michael Shamos, in which he states that he
generally agrees with Dr. Madisetti description of level of
education. Docket No. 104-1 at 5 (Michael Shamos Decl. at
¶ 15). Defendant argued in its brief that a
“POSITA would need an undergraduate degree in computer
science or electrical engineering, or equivalent experience,
and at least three years of industry or research experience
in computer networking and audio and video systems, including
exposure to fingerprinting, watermarking, content
identification, device and service discovery, sandboxing,
circumvention of sandbox protection, and relevancy matching
to identify targeted data.” Docket No.104 at 10.

As an
initial matter, the Court finds that the differences between
the parties' descriptions of the person of ordinary skill
in the art are not significant for the purpose of claim
construction. Having considered the parties' proposals,
and the factors that may be considered in determining the
level of skill in the art, the Court finds that a person of
ordinary skill in the art would have at least a bachelor
degree in computer science, electrical engineering, or a
related discipline, and a working knowledge of the
technologies implemented in “networking, data
recognition systems, and data recommendation systems.”
'668 Patent at 1:38-40.

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